Hi Ross,

I want to get your opinion on this one. If a photographer and a "Digital Artist" work together on an image? Who owns the right to it? The photographer who captured the image or the artist who manipulated it into a work of art? Can you both own the image?

Thanks,
Pilar:)

Interesting question.
From the intellectual copyright law:
178.2. In the case of works of joint authorship, the co-authors shall be the original owners of the copyright and in the absence of agreement, their rights shall be governed by the rules on co-ownership. If, however, a work of joint authorship consists of parts that can be used separately and the author of each part can be identified, the author of each part shall be the original owner of the copyright in the part that he has created;

Well for sure the photograph part is clearly belonging to the photographer.
But I guess there would still be the question of what extent of digital artist's work comprises a stake in the ownership of the image. For example if the digital artist retouches and removes a few strands of hair and a pimple or two, does that constitute a co-authorship? Somehow, maybe not in that regard, I think it could be likened to having custom labs print our images in the days of film. The actual final image is also dependent on the skill and taste of the printer as to density and colors yet we don't consider that co-ownership. I guess when it is a slight improvement it shouldn't be. But if the image is transformed into something totally different then I guess that might go more into the realm of co-authorship.

:) thanks for the info Louie

Louie,

Would you know the law of co-ownership?

Hi Pilar,

If you hire the digital artist, the entire image is yours, no co-sharing. In the case of our national artist painter who is color blind, he has an assistant who does most of the job. He just gives the scribble on paper and his assistant applies the paint throughout till it's done, then he signs it. His handicap is justified but the assistant who was handpicked and one of the best painters here in the Philippines doesn't hold ownership because he is employed by a master. Same is true with us photographers, you may hire a digital artist to do the task, since we can't finish anymore because of our busy schedules. The practice won't hurt our credibility as an artistic photographer. I'm not familiar with law, but i could point out and share real facts in the art community. One of our leading photographers today is doing this approach also. He strips, cuts, and pastes his photographs and sends it to his digital artist. The artist gets all his negatives that correspond to those cut -out photos and layout the original high res file. This well-known photographer signs his work and exhibits in galleries, as well as produced a coffeetable book; but he never shares ownership of his images.
I believe the photographer owns his images the moment he clicks the shutter...

Louie,

Would you know the law of co-ownership?

Have to check it up. Maybe we could post the entire intellectual property law somewhere on the site.

Ross

Great opinion and very interesting information! I want to present another angle to this and hope you can comment.

You are known as one of the better inkjet digital printers in the country. Lets say a photographer gave you a flie for printing because they had a show or exhibit but not in your gallery. You accepted the job because of course, its business. Now when you produced a straight print from the file, the image didn't look so good. You knew that the saturation needed improvement and the image needed more contrast and sharpening. You did more than your one minute photo lab corrections and really put some time to improve the images so that they would print better. You printed all the images.

The photographer loved the result and paid you handsomely. But he also is asking for the edited files of the images since he says that it is his property. Do you give it back to him with the risk of knowing that he can go anywhere to print those improved images? Or do you keep the file and tell him that the changes belong to you because you are the expert printer?

I'd like to hear anyone's comment.

Hi Nick,

If OWG represents the artist, and his images are intended for edition printing in my lab, then i wont release those adjusted files. If he is a client and not exhibiting in my gallery, that's alright, i will release to him the files only that i will charge him based on our standard imaging rates. But this is a case to case basis. Most of the time for art's sake i give away this extra services and i bundled it for free with my digital printing services which happened in the case of Tom Epperson when he had a show in Ayala Museum when i printed all his images. We are doing the big murals of Ava Lugtu from medium format film, and Wig Tysmans portraits with the best personalized service we can give that's why they keep on coming back. I even offered my curatorial, framing and archiving of works for free because i would want to see their works last for another 50 years still in good condition. I'm still doing that kind of treatment to all our other clients and which in some instances i teach them the practical side of test proofing and color matching using only their creative intuition. And because of this personalized service that i offer, our clients are willing to line up for queing, because they see how the process evolve, and they are always pleased with the output. We dont work haphazard, because we treat their images as masterpieces.:)

Rechecked the copyright law.

If an artist is employed, as in it is his job function to be an artist, then the copyright of whatever he creates belongs to the employer. Though, if he is employed as a graphic artist and he is asked by the employer to photograph something, ownership of the copyright of the photo belongs to him and not to the employer - if doing photography is not part of his job function.

Now, the story is different if an artist was commissioned to do a work. In such a case, the copyright of the creation belongs to the artist. But the work belongs to the one who commissioned. Let's say for a painted portrait commissioned - the portrait itself (the work) belongs to the one who commissioned, but the copyright (right to publish, right to reproduce, etc.) belongs to the artist.

So there is a distinction between being employed and being commissioned. So if I hire a digital artist to work on my photograph, it seems the question with regards to ownership of copyright depends on whether I employed the person or just commissioned him.

But there is another section that might qualify this - one on derivative works.

Sec. 173. Derivative Works. -
173.1. The following derivative works shall also be protected by copyright:
(a) Dramatizations, translations, adaptations, abridgments, arrangements, and other alterations of literary or artistic works; and
(b) Collections of literary, scholarly or artistic works, and compilations of data and other materials which are original by reason of the selection or coordination or arrangement of their contents. (Sec. 2, [P] and [Q], P. D. No. 49)

173.2. The works referred to in paragraphs (a) and (b) of Subsection 173.1 shall be protected as a new works: Provided however, That such new work shall not affect the force of any subsisting copyright upon the original works employed or any part thereof, or be construed to imply any right to such use of the original works, or to secure or extend copyright in such original works. (Sec. 8, P. D. 49; Art. 10, TRIPS)


It seems that based on the last paragraph, the copyright of the derivative work does not superceed the copyright of the original work. Thus the copyright does still belong to the photographer.

Another interesting note relevant for photographers. Unfortunately most magazines believe that the copyright of the photos they commissioned belong to them. Thus minor violation such as unauthorized repeated publishing of the same photos in later editions happen. Most photographers don't mind this. Many do mind when the publisher uses the same image in another magazine they own. The sad part is that the photographer is totally left out of the process and not even credited, instead they credit the magazine the image was borrowed from.
Worse is when the magazine of publishing company uses the images for other economic purposes, which has happened. One photographer was complaining two years back that an image he shot for a fashion magazine ended up on a billboard of a clothing company without his consent. Another publisher was commissioned by a large credit card company to come up with a promotional booklet for them, the publisher used images that were previously commissioned for other magazines.
It is sad enough that the rates for editorial photography are pathetically low here but to be robbed of the copyright is terrible. Unfortunately, though there have been desires among photographers to assert their rights, no action has been concretely done since there is a fear of being blacklisted by the publishing companies. Until a time that the majority of photographers can be united and put up a strong front to assert their rights, we will still end up being deprived in this regard.

180.3. The submission of a literary, photographic or artistic work to a newspaper, magazine or periodical for publication shall constitute only a license to make a single publication unless a greater right is expressly granted. If two (2) or more persons jointly own a copyright or any part thereof, neither of the owners shall be entitled to grant licenses without the prior written consent of the other owner or owners. (Sec. 15, P. D. No. 49a)

Wow, I like this thread. I'm learning a lot. Thanks for the inputs.

Ownership of photographs, whether hired or commissioned, based on my experience is not a concern of clients.. in the sense that they assume that it's theirs since they're paying the photographer for that project. The photographer can either give in to the client's demands or layout his cards and risk losing the project.

Some clients even go as low as cutting your rates because of 'budget constraints' and also require you to submit the original files for their future use. Enforcing your rights in this case will just let the client look for another photographer.

Maybe the lack of a professional, clear industry guidelines make this profession seem a bit more taxing to some. Except if you're perhaps a sought-after well-known photographer.. or an established commercial studio.

Ownership of photographs, whether hired or commissioned, based on my experience is not a concern of clients.. in the sense that they assume that it's theirs since they're paying the photographer for that project. The photographer can either give in to the client's demands or layout his cards and risk losing the project.

Some clients even go as low as cutting your rates because of 'budget constraints' and also require you to submit the original files for their future use. Enforcing your rights in this case will just let the client look for another photographer.

Maybe the lack of a professional, clear industry guidelines make this profession seem a bit more taxing to some. Except if you're perhaps a sought-after well-known photographer.. or an established commercial studio.

Well expressed Grandier. :)